(PC) Washington v. Essex

• Court: District Court, E.D. California
• Decided: December 5, 2022
• Docket: 2:12-cv-03054
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRACYE BENARD WASHINGTON, No. 2:12-cv-03054-DAD-DB 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF’S MOTION TO REOPEN DISCOVERY AND SETTING 14 C. ESSEX, et al., CASE SCHEDULE 15 Defendants. (Doc. No. 176) 16 17 This matter is before the court on the motion to reopen discovery filed on behalf of 18 plaintiff on September 7, 2022. (Doc. No. 176.) Therein, plaintiff requests that expert discovery 19 and limited fact discovery be reopened in light of the Ninth Circuit’s decision on plaintiff’s direct 20 appeal of the judgment entered in favor of defendants Dr. Craig Essex and Dr. Carol Banyas 21 following a jury trial in this case. (Id.at 6–9.) Specifically, on October 21, 2021, the Ninth 22 Circuit reversed this court’s judgment and remanded this case for a new trial because this “court’s 23 denial of [plaintiff’s] request for the appointment of an expert while allowing the [d]efendant 24 [d]octors to testify as experts, constituted plain error.” (Doc. No. 167 at 4–5.)1 Defendants do 25 not oppose plaintiff’s motion as to the reopening of expert discovery, but they oppose the 26 reopening of fact discovery. (Doc. Nos. 179 at 1, 7; 181 at 15–16, 28.) On October 11, 2022, 27

28 1 On August 25, 2022, this case was reassigned to the undersigned. (Doc. No. 175.) 1 plaintiff’s motion was taken under submission on the papers. (Doc. No. 184.) For the reasons 2 explained below, plaintiff’s motion to reopen discovery will be granted. 3 BACKGROUND 4 On December 20, 2012, plaintiff Tracye Benard Washington, a state prisoner who was 5 proceeding pro se, filed the complaint initiating this civil rights action brought pursuant to 42 6 U.S.C. § 1983 against defendants Dr. Essex and Dr. Banyas. (Doc. No. 1.) In his complaint, 7 plaintiff alleges that defendants violated his constitutional right to due process under the 8 Fourteenth Amendment by involuntarily injecting him with psychotropic medication on two 9 separate occasions while he was incarcerated at the California Medical Facility’s Department of 10 State Hospitals–Vacaville’s Acute Psychiatric Program (the “Facility”). (Id.) 11 For the next six years, plaintiff prosecuted this case pro se, including propounding some 12 written discovery requests on defendants, successfully opposing summary judgment, and 13 representing himself in a four-day trial conducted before District Judge John A. Mendez that 14 began on August 20, 2018.2 (See Doc. Nos. 27, 31, 141–144.) The jury returned a verdict in 15 favor of defendants, and on August 27, 2018, judgment was entered in accordance with the 16 verdict. (Doc. Nos. 148–150.) Plaintiff filed a motion for judgment as a matter of law pursuant 17 to Federal Rule of Civil Procedure 50(b), which was denied on December 11, 2018. (Doc. Nos. 18 154, 159.) Plaintiff thereafter appealed the jury’s verdict and the court’s denial of his Rule 50(b) 19 motion to the Ninth Circuit. (Doc. No. 161.) 20 On July 22, 2020, the Ninth Circuit appointed pro bono counsel to represent plaintiff in 21 his direct appeal. (See Doc. No. 176 at 7.) On October 21, 2021, the Ninth Circuit issued its 22 decision on plaintiff’s appeal, “conclud[ing] that the district court committed reversible error” 23 when it denied plaintiff’s “request for the appointment of an expert while allowing the Defendant 24 Doctors to testify as experts.” (Doc. No. 167 at 2, 4–5.) The Ninth Circuit summarized “the 25 unique facts of this case” as follows: 26

27 2 Over the course of this litigation, plaintiff had filed six motions requesting that the court appoint counsel to represent him in this action, and the court denied all of those requests. (Doc. 28 Nos. 7, 26, 75, 86, 94, 102.) 1 The district court initially denied without prejudice Washington’s request for appointment of an expert because Washington 2 mistakenly requested appointment of an expert “to assist him at trial,” rather than a neutral expert. Nevertheless, the district court 3 assured the parties that it would appoint a neutral expert “should the court later determine that a neutral expert is necessary.” 4 At trial, the district court determined that no expert testimony was 5 necessary to help the jury decide whether the Defendant Doctors violated Washington’s constitutional rights when they involuntarily 6 medicated him. Rather, the district court characterized the action as a “credibility case” whereby the jury could “hear . . . Washington’s 7 version and [the Defendant Doctors’] version” of events. 8 The district court reasoned: 9 [I]t is a he said/she said case. I mean, it’s clear it’s a credibility case. And experts don’t add anything 10 and experts can’t testify . . . All they can do is take what [Defendant Doctors] say and render an 11 opinion, which doesn’t assist the jury in this case. It’s clearly a credibility case here . . . And I’m not 12 going to waste the jury’s time or the Court’s time with an expert that’s not going to add anything to 13 the issues in this case. It’s a very simple, straightforward case. And I’m not going to try to 14 complicate it with experts that don’t add anything and may have to shade over into legal opinions. . . . 15 I’m not going to allow the experts to testify. 16 Having provided these extensive remarks regarding why expert testimony was unnecessary, the district court immediately thereafter 17 designated the Defendant Doctors as experts, without revisiting its denial of Washington’s request for the appointment of an expert. 18 Defendant Doctors proceeded to testify as experts regarding: 1) Washington’s mental condition; 2) their reliance on Washington’s 19 history of violence despite the substantial passage of time; 3) why Washington’s actions constituted a “sudden and marked change” in 20 his mental condition; and 4) why the circumstances constituted an “emergency” warranting involuntary medication. 21 22 (Id. at 2–4.) Thus, the Ninth Circuit “reverse[d] the district court’s judgment, and remand[ed] for 23 a new trial with a neutral expert appointed by the court, or testimony from the Defendant Doctors 24 only as fact witnesses.” (Id. at 5.) The mandate from the Ninth Circuit was issued on November 25 12, 2021. (Doc. No. 168.) 26 On November 24, 2021, plaintiff’s pro bono counsel filed their notice of appearance as 27 counsel for plaintiff in this court on remand. (Doc. No. 172.) The parties met and conferred in 28 June and July 2022 regarding plaintiff’s counsel’s request that defendants provide copies of all 1 the discovery in this case, which defendants provided. (Doc. No. 176-1 at ¶¶ 2–7.)3 In August 2 2022, the parties met and conferred further regarding several purported discovery deficiencies 3 that plaintiff’s counsel had identified and regarding plaintiff’s intent to move to reopen discovery. 4 (Id. at ¶¶ 7–8.) Plaintiff’s counsel also informed defense counsel that plaintiff was in the process 5 of retaining his own medical expert to testify at trial. (Id. at ¶ 7.) 6 On September 7, 2022, plaintiff filed the pending motion to reopen both fact and expert 7 discovery. (Doc. No. 176.) On September 21, 2022, defendant Banyas filed an opposition to the 8 pending motion, opposing only plaintiff’s request to reopen fact discovery. (Doc. No. 179.) On 9 September 23, 2022, defendant Essex filed an opposition to the pending motion, similarly 10 opposing only plaintiff’s request to reopen fact discovery. (Doc. No. 181.)4 Defendants do not 11 oppose the reopening of expert discovery. (Doc. Nos. 179 at 1, 7; 181 at 15–16, 28.) On October 12 3, 2022, plaintiff filed a reply in support of his motion to reopen discovery. (Doc. No. 182.) 13 LEGAL STANDARD 14 “The decision to modify a scheduling order is within the broad discretion of the district 15 court.” FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1030 (E.D. Cal. 2002). Pursuant to Rule 16 16 of the Federal Rules of Civil Procedure, a case “schedule may be modified only for good cause 17 and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Thus, when a party seeks to modify the 18 scheduling order, including the reopening of discovery, that party must first show “good cause.” 19 See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson v. Mammoth 20 Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). In Johnson, the Ninth Circuit explained that 21 3 Due to District Judge John A. Mendez taking senior status, this case was reassigned to Chief 22 District Judge Kimberly J. Mueller on July 27, 2022. (Doc. No. 173.) On August 2, 2022, the 23 court set a status conference for October 6, 2022 and directed the parties to file a joint status report. (Doc. Nos. 174.) However, on August 25, 2022, this case was reassigned to the 24 undersigned, and the status conference was vacated, to be reset if necessary after consideration of the parties’ joint status report, which the parties filed on September 22, 2022. (Doc. Nos. 175, 25 177, 180.)

26 4 The court declines plaintiff’s suggestion that the court should disregard defendant Essex’s 27 opposition as untimely filed. (Doc. No. 182 at 6.) The court will consider defendant Essex’s arguments in opposition to the pending motion even though defendant Essex filed her opposition 28 brief two days after the filing deadline. 1 Rule 16(b)’s “good cause” standard primarily considers the diligence of the party seeking the amendment. The district court 2 may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension. Moreover, 3 carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Although existence of a degree of 4 prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon 5 the moving party’s reasons for modification. If that party was not diligent, the inquiry should end. 6 7 975 F.2d at 609 (internal quotation marks and citations omitted); see also 6A Wright & Miller, et 8 al., Fed. Prac. & Proc. § 1522.2 (3d ed. 2018) (“What constitutes good cause sufficient to justify 9 the modification of a scheduling order necessarily varies with the circumstances of each case.”). 10 District courts in the Ninth Circuit consider the following six factors when ruling on a 11 motion to modify a scheduling order to reopen discovery: 12 (1) whether trial is imminent, (2) whether the request is opposed, (3) whether the non-moving party would be prejudiced, (4) whether 13 the moving party was diligent in obtaining discovery within the guidelines established by the court, (5) the foreseeability of the 14 need for additional discovery in light of the time allowed for discovery by the district court, and (6) the likelihood that the 15 discovery will lead to relevant evidence. 16 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting United 17 States ex rel. Schumer v. Hughes Aircraft, 63 F.3d 1512, 1526 (9th Cir. 1995), vac’d on other 18 grounds, 520 U.S. 939 (1997)). 19 ANALYSIS 20 In light of plaintiff’s decision to retain and designate an expert of his own to testify at the 21 retrial of this action on remand, good cause has been shown to reopen expert discovery, and the 22 court will therefore grant plaintiff’s unopposed request to reopen expert discovery. The only 23 remaining question is whether plaintiff has shown good cause to modify the scheduling order to 24 reopen fact discovery for the limited purpose of allowing plaintiff to propound written discovery 25 requests, requests for production of documents, and conduct depositions, as specified in plaintiff’s 26 motion. Specifically, plaintiff seeks to propound seven interrogatories and seven requests for 27 production of documents on each defendant, depose no more than ten witnesses, and subpoena 28 ///// 1 the warden at the Facility for production of documents. (See Doc. Nos. 176-20–176-24; 182 at 2 7.) 3 A. Summary of the Parties’ Respective Arguments 4 In the pending motion, plaintiff argues that good cause exists to reopen limited fact 5 discovery for several reasons. First, plaintiff emphasizes that he did not have legal counsel during 6 the original discovery phase of this litigation, and courts often reopen discovery where pro se 7 parties obtain pro bono counsel after discovery has closed. (Doc. No. 176 at 10–12) (citing 8 cases).5 Second, plaintiff asserts that due to his “lack of legal training and guidance,” and despite 9 his diligent efforts to conduct discovery, he was unable to discover relevant evidence, including a 10 complete set of his medical files along with defendants’ notes on the dates they involuntarily 11 medicated him, as well as evidence bearing on defendants’ credibility. (Id. at 10–11.) For 12 example, plaintiff contends that because he lacked counsel and legal training, he was not able to 13 craft discovery requests to overcome defendants’ boilerplate objections. (Id. at 14.) Third, 14 according to plaintiff, reopening limited fact discovery as he has requested is necessary for him to 15 5 As explained by the court in one of the decisions cited by plaintiff: 16 Courts have permitted the reopening of discovery where a state 17 prisoner proceeding pro se moved to reopen discovery following the appointment or retention of counsel after the discovery cutoff 18 date. In so doing, courts have considered not only the diligence of the prisoner in pursuing discovery, but also the necessity of 19 additional discovery for trial preparation and for resolution of the matter on the merits. See, e.g., Draper v. Rosario, 2013 WL 20 6198945, at *1–2 (E.D. Cal. Nov. 27, 2013) (court permitted pro se prisoner to reopen discovery when he acquired pro bono counsel 21 after the discovery cut-off date; counsel alone did not entitle plaintiff to additional discovery, but limited additional discovery 22 would serve the ultimate resolution of case on the merits); Woodard v. City of Menlo Park, 2012 WL 2119278, at *1–2 (N.D. Cal. June 23 11, 2012) (discovery reopened for pro se plaintiff who obtained counsel after the discovery cut-off date, noting that additional fact 24 discovery would serve the interest of justice and the public policy of adjudicating cases on the merits); Henderson v. Peterson, 2011 25 WL 441206, at *2 (N.D. Cal. Feb. 3, 2011) (court noted that despite pro se plaintiff's discovery efforts, he was unable to gain access to 26 evidence that he might have obtained had he been represented by counsel). 27 Calloway v. Scribner, No. 1:05-cv-01284-BAM PC, 2014 WL 1317608, at *1 (E.D. Cal. Mar. 27, 28 2014). 1 sufficiently prosecute his claims on the merits at the new trial. (Id. at 11.) Fourth, plaintiff 2 contends that reopening discovery to allow plaintiff to conduct depositions will also serve to 3 “streamline the central issues and the presentation of evidence at trial.” (Id.) In addition, plaintiff 4 argues that the balance of the factors that courts in the Ninth Circuit consider weigh in favor of 5 granting his motion to reopen fact discovery. (Id. at 13–16.) According to plaintiff, of the six 6 factors articulated above, only the second factor—that the request is opposed—weighs against the 7 granting of plaintiff’s motion. 8 In their oppositions, defendants argue that plaintiff has not shown good cause to modify 9 the scheduling order to reopen fact discovery. (Doc. Nos. 179, 181.) Defendant Banyas urges the 10 court to deny plaintiff’s motion to reopen fact discovery because the appearance of counsel on 11 plaintiff’s behalf does not constitute good cause, plaintiff conducted extensive discovery and was 12 not hampered by his pro se status in doing so, and the proposed additional discovery requests are 13 not likely to lead to admissible evidence. (Doc. No. 179 at 4–6.) Defendant Essex characterizes 14 plaintiff’s motion as a request for “a broad and expensive discovery do-over,” including unlimited 15 numbers of interrogatories, requests for production, and depositions. (Doc. No. 181 at 14.) 16 Based on this characterization and relying mainly on out-of-circuit authority for support, 17 defendant Essex argues that consideration of the “good cause” factors disfavor reopening 18 discovery here and doing so would be “fruitless.” (Id. at 17–27.) 19 In his reply, plaintiff notes that defendant Banyas’ focus on whether the additional 20 discovery would lead to “admissible” evidence is misplaced because that factor is the “likelihood 21 that the discovery will lead to relevant evidence.” (Doc. No. 182 at 20) (citing City of Pomona, 22 866 F.3d at 1066) (emphasis added). Plaintiff also notes that defendant Essex relies “almost 23 entirely on a litany of non-binding and factually distinct cases from outside of this Circuit.” (Id. 24 at 6.) In addition, according to plaintiff, defendant Essex misrepresents a Ninth Circuit decision 25 as standing for the general proposition that district courts need not reopen discovery where doing 26 so would be “fruitless”—purportedly ascribing a “fruitless” standard for all motions to reopen 27 discovery. (Id.) But in that case, the Ninth Circuit addressed the appropriateness of summary 28 judgment and held that “summary judgment in the face of requests for additional discovery is 1 appropriate only where such discovery would be ‘fruitless’ with respect to the proof of a viable 2 claim.” (Id.) (quoting Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004)). 3 B. Consideration of the Ninth Circuit’s Good Cause Factors 4 1. Whether Trial is Imminent 5 The court has not yet set a trial date following remand of this action for a new trial. 6 Defendant Essex acknowledges that a trial date has not yet been set, but nevertheless argues that 7 this factor weighs in his favor because there would be a corresponding delay if discovery were 8 reopened. (Doc. No. 181 at 27.) However, defendant Essex does not oppose the reopening of 9 expert discovery, which would also result in the setting of a later trial date. Defendant Banyas did 10 not address this factor in her opposition but has implicitly conceded that trial is not imminent 11 because she stated in the parties’ joint status report that she is not available for a trial in this case 12 until December 2023. (See Doc. No. 180 at 3.) The court agrees with plaintiff that trial in this 13 case is not imminent. 14 Accordingly, consideration of this factor weighs in favor of granting plaintiff’s motion to 15 reopen discovery. 16 2. Whether the Request is Opposed 17 As noted, both defendants oppose plaintiff’s motion to the extent he seeks to reopen fact 18 discovery. Accordingly, consideration of this factor weighs against the granting of plaintiff’s 19 motion. 20 3. Whether Defendants would be Prejudiced 21 Plaintiff argues that defendants would not be unduly prejudiced by the reopening of 22 limited fact discovery because that discovery “almost certainly would have been done long ago 23 had [plaintiff] had counsel.” (Doc. No. 176 at 13.) In other words, the limited discovery that 24 defendants would be subjected to now, if the court were to grant the pending motion, is not 25 prejudicial to defendants because that discovery would have been sought earlier if plaintiff had 26 the benefit of counsel, who would have had the skill and training to overcome defendants’ 27 boilerplate objections to plaintiff’s pro se discovery requests. Plaintiff stresses that reopening 28 discovery under the circumstances of this case would not be unfair to defendants, but not doing so 1 would be unfair to plaintiff because: 2 [i]n a case that largely hinges on the credibility of the witnesses, Mr. Washington’s ability to receive a fair trial on remand is 3 predicated on whether Mr. Washington is permitted to conduct critical discovery concerning his involuntary administrations with 4 psychotropic drugs on March 18 and April 4, 2012—discovery that counsel almost certainly would have conducted during the time 5 initially allotted for discovery, had Mr. Washington been represented. Mr. Washington should be permitted to conduct this 6 essential discovery now with the assistance of counsel, to facilitate resolution of this case on the merits rather than on an incomplete, 7 one-sided record. 8 (Doc. No. 176 at 6–7.) 9 Defendant Banyas argues in conclusory fashion that reopening discovery would be 10 prejudicial to defendants, who already participated in discovery and the original trial, by requiring 11 them to expend further time and resources and have their depositions taken. (Doc. No. 179 at 7.) 12 This argument rings hollow, however, because defendant Banyas has agreed that expert discovery 13 should be reopened, and as a testifying expert, her deposition will likely be taken by plaintiff’s 14 counsel in any event. The court is similarly not persuaded by defendant Essex’s argument that he 15 would be substantially prejudiced because he has already litigated this case for many years, and 16 he would be forced to incur additional costs. (Doc. No. 181 at 26–27.) But this is true regardless 17 of whether the court grants plaintiff’s pending motion. The Ninth Circuit has ordered that 18 plaintiff shall receive a new trial in this case, and that will inherently lead to defendants incurring 19 additional costs, especially given that expert discovery will be reopened. In this context, the court 20 is not convinced that the additional costs defendants will incur if fact discovery is reopened 21 constitutes undue prejudice to defendants. See Acinelli v. Torres, No. 13-cv-1371-TJH-PLA, 22 2020 WL 6712255, at *2 (C.D. Cal. Oct. 27, 2020) (granting the plaintiff’s motion to reopen 23 discovery and noting that while the court “certainly understands defendant’s frustration at the 24 amount of time that has passed since this action was filed, any prejudice to defendant due to the 25 case being pending for almost seven years does not outweigh plaintiff’s right to take defendant’s 26 deposition—especially now that plaintiff is represented by counsel”). 27 Accordingly, consideration of this factor weighs in favor of granting plaintiff’s motion. 28 1 4. Whether Plaintiff was Diligent in Obtaining Discovery 2 Plaintiff argues that he was diligent in timely serving discovery requests on defendants 3 (albeit it, poorly drafted requests), but he maintains that he was unable to overcome defendants’ 4 boilerplate objections. (Doc. No. 176 at 14–15.) As a result, he was unable to obtain relevant 5 evidence,6 and did not able to take a single deposition in this case due to his incarceration and 6 lack of resources. (Id.) Defendant Banyas does not address this factor in her opposition brief, but 7 in summarizing the procedural history of this case, she recounts plaintiff’s discovery requests and 8 motions. (Doc. No. 179 at 1–2.) Defendant Essex also recounts plaintiff’s discovery efforts in 9 his procedural background section, but nevertheless argues that plaintiff has not been diligent 10 because he had “ample opportunity to pursue the fact discovery that his counsel now seeks.” 11 (Doc. No. 181 at 12–13, 25.) In his reply, plaintiff contends that defendant Essex’s argument 12 misses the point, which is that plaintiff “was not represented by counsel during the allotted fact 13 discovery period, and despite his admirable pursuit of discovery, he was unable to pursue the 14 discovery he now seeks given his incarceration, indigent status, and lack of legal training.” (Doc. 15 No. 182 at 16.) The court is persuaded by plaintiff’s argument in this regard, as plaintiff’s pro se 16 discovery efforts are evident in the record and reflect that he was diligent in pursuing discovery to 17 the best of his ability. See Henderson v. Peterson, No. 07-cv-2838-SBA-PR, 2011 WL 441206, 18 at *1 (N.D. Cal. Feb. 3, 2011) (granting plaintiff’s motion to reopen discovery, in part because 19 6 In particular, plaintiff explains that he was unable to obtain evidence as to: 20 (a) the identity of witnesses with discoverable information 21 regarding the circumstances of Mr. Washington’s involuntary medications on March 18 and April 4, 2012, and by extension, the 22 critical discovery those witnesses possessed; (b) the Facility’s records regarding the number and frequency of involuntary 23 medications administered on an emergency basis, including those relating to Drs. Essex and Banyas; (c) the Facility’s records relating 24 to inmate complaints lodged against Drs. Essex and Banyas; (d) employment records and other similar records other than the 25 Facility’s concerning Drs. Essex’s and Banyas’s employment as psychiatrists and history of administering involuntary medication; 26 (e) the Facility’s medical records for Mr. Washington; and (f) any other documents or reports Drs. Essex and Banyas intend to use in 27 support of their defenses.

28 (Doc. No. 176 at 14.) 1 “[t]here is no indication that Plaintiff—who until recently has been acting pro se—has been 2 dilatory in conducting discovery” and “[t]o the contrary, the record shows that he has made 3 numerous attempts, albeit largely unsuccessfully, to obtain discovery from Defendants prior to 4 the appointment of counsel.”). The court agrees with plaintiff that he actively pursued discovery 5 by serving requests for production, requests for admissions, and interrogatories on defendants, but 6 he was unable to obtain meaningful evidence bearing on his claims due to his status as a pro se 7 inmate, his limited financial resources, and his lack of legal training. For example, plaintiff’s 8 inability to take depositions or obtain the missing “portions of his medical files that omitted Dr. 9 Banyas’s medical notes on April 4, 2012 (the date she administered Mr. Washington psychotropic 10 medication without his consent),” was not due to his lack of diligence. (Id. at 15.) 11 Accordingly, consideration of this factor also weighs in favor of granting plaintiff’s 12 motion. 13 5. The Foreseeability of the Need for Additional Discovery 14 Given the circumstances described with regard to plaintiff’s diligence in pursing 15 discovery, namely his inability to overcome defendants’ boilerplate objections and inability to 16 conduct depositions, coupled with the fact that courts often allow plaintiffs to reopen discovery 17 when they later obtain pro bono counsel after the close of discovery, plaintiff argues that “it was 18 foreseeable to Defendants that Plaintiff would seek to reopen discovery once he retained pro bono 19 counsel.” (Doc. No. 182 at 17.) The court agrees. See Vinzant v. United States, No. 5:07-cv- 20 00024-VAP-JCR, 2015 WL 13376683, at *4 (C.D. Cal. Aug. 7, 2015) (concluding the 21 foreseeability factor weighed in favor of granting plaintiff’s motion to reopen discovery because 22 “[c]ourts often reopen discovery once pro bono counsel is retained” and it was therefore 23 “foreseeable to Defendants that Plaintiff would seek to reopen discovery once he retained pro 24 bono counsel”); Calloway, 2014 WL 1317608, at *1 (“Courts have permitted the reopening of 25 discovery where a state prisoner proceeding pro se moved to reopen discovery following the 26 appointment or retention of counsel after the discovery cutoff date.”). Moreover, “[t]he Ninth 27 Circuit has warned that district courts err when they ‘ignore[] our oft stated commitment to 28 deciding cases on the merits whenever possible, and [hold] a layman working without the aid of 1 an attorney[] to the same standards to which we hold sophisticated parties acting with the benefit 2 of legal representation.’” Chavez v. United States, No. 19-cv-31-DMG-JEM, 2022 WL 3 16859654, at *6 (C.D. Cal. Aug. 8, 2022) (quoting United States v. Signed Pers. Check No. 730 4 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010)) (granting the formerly pro se plaintiff’s 5 motion to reopen discovery, noting that “[i]t is true that Plaintiff has had a stroke of luck in 6 securing pro bono counsel, an opportunity many incarcerated civil litigants never receive. But it 7 would be an ironic twist and needless injustice to thwart this opportunity by locking his new 8 counsel into a pro se pleading without the benefit of discovery”). 9 Accordingly, consideration of this factor also weighs in favor of granting plaintiff’s 10 motion. 11 6. The Likelihood that the Discovery will Lead to Relevant Evidence 12 Plaintiff argues that the additional discovery he seeks will lead to relevant evidence 13 because evidence of defendants’ “history of administering inmates involuntary medications and 14 testimony from witnesses present at [plaintiff’s] involuntary medications will shed light on 15 whether an emergency existed on the days the doctors involuntarily injected [plaintiff] with 16 psychotropic drugs—which is the ultimate question the trial will seek to resolve.” (Doc. No. 176 17 at 16.) Having considered the proposed requests and plaintiff’s arguments with regard to the 18 relevance of those requests, the court agrees that the additional discovery plaintiff seeks is likely 19 to lead to relevant evidence. Defendants argue that because they both testified at trial and were 20 subject to cross-examination by plaintiff, there is no likelihood that additional discovery will lead 21 to relevant evidence that is not already part of the court’s record in this case. (Doc. Nos. 179 at 6; 22 Doc. No. 181 at 21–22.) This argument is unpersuasive, however, because plaintiff was 23 proceeding pro se at trial, and did not have the benefit of counsel to better and more effectively 24 probe defendants’ credibility and the existence (or lack thereof) of corroborating evidence. In 25 addition, the court is not persuaded by defendant Banyas’s argument that plaintiff’s proposed 26 additional discovery requests would not lead to “admissible” evidence due to application of the 27 Health Insurance Portability and Accountability Act (“HIPAA”) and/or other protections and 28 privileges. (Doc. No. 179 at 6.) To the extent that defendants believe certain of plaintiff’s 1 discovery requests improperly seek protected information, defendants may file a discovery 2 motion seeking a protective order, a motion which would be heard by the magistrate judge 3 assigned to this case, consistent with Local Rule 302. See Henderson, 2011 WL 441206, at *2 4 (granting motion to reopen discovery and rejecting defendants arguments the reopening discovery 5 would be disruptive, time-consuming, and burdensome, noting that “[t]o the extent that 6 Defendants believe that Plaintiff’s discovery requests are improper and unduly burdensome, they 7 may file a motion for protective order before the magistrate judge assigned to oversee discovery 8 disputes in this action”). 9 Accordingly, consideration of this final factor also weighs in favor of granting plaintiff’s 10 motion. 11 In sum, consideration of all but one of the factors weigh in favor of granting plaintiff’s 12 motion to reopen fact discovery, specifically to allow plaintiff to propound the additional 13 discovery requests and conduct depositions as requested in his motion. Importantly, plaintiff was 14 clearly diligent in obtaining discovery and consideration of that factor receives the greatest 15 weight. See Johnson, 975 F.2d at 609. Thus, the court will grant plaintiff’s motion to reopen 16 both expert and limited fact discovery.7 See Holmes v. Estock, No. 16-cv-2458-MMA-BLM, 17 2022 WL 16541182, at *3 (S.D. Cal. Oct. 28, 2022) (granting the plaintiff’s motion to reopen 18 discovery, even though it was opposed, because plaintiff had been diligent and “trial is not 19 imminent, defendant will not be unduly prejudiced by a short additional discovery period, [] the 20 discovery is likely to reveal relevant evidence,” and “additional discovery will serve in the 21 ultimate resolution of the case on the merits”). 22 C. Case Schedule 23 The court has reviewed the parties’ joint status report, in which each party proposes their 24 suggested case schedule in the event the court were to grant plaintiff’s motion. (Doc. No. 180.)

25 7 In his opposition to the pending motion, defendant Essex requests that, if the court is inclined to grant plaintiff’s motion, the court should likewise allow defendant Essex to conduct additional 26 discovery. (Doc. No. 181 at 28.) Defendant Essex contends that he “too is entitled to an 27 adequate preparation of his defense.” (Id.) The court rejects defendant Essex’s request because he has not filed his own motion to reopen fact discovery for this purpose, nor has he attempted to 28 make the requisite showing of good cause. 1 Having considered the parties’ respective proposals, the court will set the following schedule: 2 • Close of limited fact discovery: March 10, 2023 3 • Expert disclosure deadline: April 10, 2023 4 • Rebuttal expert disclosure deadline: May 10, 2023 5 • Close of expert discovery: June 9, 2023 6 • Deadline to file dispositive motions: July 7, 2023 7 • Final pretrial conference: October 3, 2023 at 1:30 p.m. 8 • Jury trial: December 4, 2023 at 9:00 a.m. 9 CONCLUSION 10 For the reasons set forth above: 11 1. Plaintiff’s motion to reopen discovery (Doc. No. 176) is granted; 12 a. Expert discovery is reopened as to all parties; and 13 b. Limited fact discovery is reopened as to plaintiff, as described herein; 14 2. The court now sets the following case schedule: 15 Close of limited fact discovery March 10, 2023 16 Expert disclosure deadline April 10, 2023 17 Rebuttal expert disclosure deadline May 10, 2023 18 Close of expert discovery June 9, 2023 19 Deadline to file dispositive motions July 7, 2023 20 Final pretrial conference October 3, 2023 at 1:30 p.m. by Zoom before 21 District Judge Dale A. Drozd 22 Jury trial December 4, 2023 at 9:00 a.m. in Courtroom 4 before District Judge Dale A. Drozd 23 24 3. The parties shall file a joint pretrial statement in accordance with Judge Drozd’s 25 Standing Order in Civil Actions, which is posted on Judge Drozd’s webpage on 26 the court’s website; and 27 4. The parties are advised that the undersigned requires parties to participate in a 28 court-ordered settlement conference before proceeding to trial. Therefore, prior to 1 the final pretrial conference, the court will refer this case to the assigned 2 magistrate judge for the setting of a settlement conference, unless the parties have 3 already filed a request for a settlement conference. The parties are encouraged to 4 meet and confer and file a request for a settlement conference once they believe a 5 settlement conference would be productive. 6 IT IS SO ORDERED. "| Dated: _December 2, 2022 Dab A. 2, aol 8 UNITED STATES DISTRIC¥ JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15